Changes to rape laws: Giving voice to the pain

Should a woman’s sexual experience and history be introduced as evidence in the trial of her accused rapist? Will the Indian legal system ever recognise forced sex between husband and wife as rape? What constitutes the ‘modesty’ of a 10-year-old girl?

A recent report by Human Rights Watch examining the common practice in India of subjecting unmarried women who say they have been raped to what the law calls a ‘finger test’ has reopened a series of questions about the country’s laws governing sexual violence. The report, compiled by Aruna Kashyap, a women’s rights researcher, called for an end to the test, which as the name suggests, involves inserting fingers into the woman to measure ‘vaginal laxity’ and thereby ascertain whether she was ‘habituated to sex’ before the alleged assault.

Although there has been no official response to the report, its findings have provoked widespread outrage in India and elsewhere, with many agreeing that the test is an archaic and scientifically unsupported practice that could exacerbate the trauma of the victim.

In the same week the report was released, less noticed but telling were the routine police reports filed around the country of alleged crimes under Section 354 of the Indian Penal Code, which makes “outraging the modesty of a woman” a criminal offense. One of the cases that came to trial concerned a teacher who had “outraged the modesty” of a 10-year-old in his care. The euphemism effectively veiled the impact of what had really happened — three separate incidents of sexual assault on a child.

In a country where legal reform has been progressive in many spheres, and where the judiciary has often taken an active role in protecting human rights, the slow pace of change in the rape laws is evidence of a larger cultural silence regarding violence against women.

Urvashi Butalia, a prominent feminist scholar and publisher, is blunt in her analysis of the decades of official indifference that have surrounded India’s laws on rape.

“Laws that relate to violence against women, as the rape law largely does, are, in the eyes of the state, best forgotten or not bothered about,” she said in an interview. “Or at least they don’t have the same kind of urgency as, say, corporate legislation might.”
“This is still a society that somehow sees women differently, or does not see them at all,” she said. “To me, indifference is much more difficult to fight than active resistance. Resistance is visible. Indifference is often so naturalised that it remains invisible and therefore a major obstacle.”

The first major changes to the laws on rape, which had been inherited almost intact from the days of British rule, only came in 1983. Before then, a woman who said she had been raped had the obligation to prove she had not given her consent.

And it was only this year that the government set up a committee to consider whether the laws should be changed to define sex without consent in marriage as a crime, whether they should be gender-neutral to include the sexual abuse of men and boys, and whether the definition of rape should be expanded to include penetration with objects.

The finger test — which ostensibly provides evidence of a woman’s level of promiscuity and has, in some cases, led to rape charges being dropped — is not the only hangover from the days of the Raj.

For Ms Kashyap, the author of the Human Rights Watch report, the issue goes beyond how the legal system handles rape to the question of how rape is viewed by Indian society. The need for reform goes beyond the law, she said; the need is to change how Indians see rape in the 21st century, as an act of violence rather than an assault on a woman’s chastity.

“Even in its current law-reform phase, the Indian government has retained the coinage of ‘outraging’ or ‘insulting’ the ‘modesty’ of women,” Kashyap said. “Sexual violence should be completely delinked from patriarchal notions of ‘modesty,’ ‘chastity’ or ‘virginity,’ because ideas of so-called ‘modesty’ themselves perpetuate violence and discrimination. The Indian government should acknowledge that sexual violence is a violation of women’s dignity, equality, sexual autonomy and bodily integrity.”

Underlying the finger test is an unspoken but very strong belief: the idea that a promiscuous woman, or a sexually liberated woman, is fair game, her ‘modesty’ no longer the responsibility of the government to protect.

“Outraging the modesty of a woman” now covers a wide range of cases, many of them unequivocal instances of violence.

The newspapers regularly report incidents in which women, chiefly from the lower castes, are stripped and sometimes beaten as a act of revenge against their communities or families.

In a case in July in a Mumbai slum, a young, lower-caste woman was stripped by a mob of about 20 assailants in a case arising from a dispute between families from different castes. Some of the attackers recorded the assault on their mobile phones. Women’s rights advocates have asked that the prison sentence for those convicted of such attacks be extended from two to seven years. The news media still often refer such assailants as “molesters.” A softening and denial of violence is built into the system.

One 36-year-old woman knows this firsthand. She runs her own garment export company in Ludhiana, the largest city in Punjab, and could be the prototype for the modern, successful Indian woman. She is also divorced, from a man who raped her so brutally during their 10-year marriage that she has had to undergo vaginal reconstruction surgery. The law only recognises a form of rape within marriage in the case of girls under the age of 15, who are considered minors whose unions are not legally valid. So she had to obtain her divorce on other grounds.

“I want to tell the world, my family and friends, the truth — my husband was a rapist,” said the woman, who spoke on condition of anonymity to shield her family. “I can tell them about the beatings, but not the rapes. We aren’t supposed to talk about these matters, because they’re shameful. But if there was shame, there was also anger. The anger of being told, ‘He was your husband, he had the right to do this.’ Maybe for others, it will change. My pain has no voice.”